Docket: CACR2412 Her Majesty the Queen Appellant - v. -, 2014 SKCA 99

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 99 Date: 2014-09-18 Between: Docket: CACR2412 Her Majesty the Queen Appellant - and - Christopher Jordan Lee Papequash Respondent Coram: Lane, Caldwell and Whitmore JJ.A. Counsel: Andrew S. Davis for the appellant Jeffery W. Deagle for the respondent Appeal: From: Provincial Court Heard: September 18, 2014 Disposition: Allowed (orally)

Written Reasons: September 23, 2014 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Whitmore Lane J.A. (oral) [ 1 ] The Crown seeks leave to appeal a conditional sentence of 21 months imposed upon the respondent after he pled guilty to a charge of assaulting his estranged wife. He was then credited with six months to the sentence for time spent in remand. [ 2 ] The facts are briefly stated. While driving by the respondent’s residence his estranged wife, the complainant, pulled over and parked.

The accused jumped into the back seat of her vehicle and they argued over custody arrangements. From behind, the respondent grabbed the complainant by the neck and began to choke her. He choked her to the extent she was gasping for air and was unable to scream and call out. The respondent was yelling and agitated during the incident. The complainant managed to free herself and eventually the respondent got out of the vehicle. The complainant suffered minor injuries.

The assault took place within four months of the expiry of the respondent’s last conditional sentence order. [ 3 ] In an oral decision we granted the Crown leave to appeal and allowed the appeal finding the sentence imposed below was unfit. These are our written reasons. [ 4 ] The respondent represented himself, blaming alcohol and urging the judge to ignore his youth record saying he made mistakes but he was not the person he was back then. He blamed his mother and home life for his anger. He argued many of his prior assaults occurred while he was in custody in various institutions.

He also said he had gone to Bible school in 2003 and this effected a change in him. [ 5 ] The respondent’s criminal record began when he was 12 and included 41 convictions of which 13 were for various assaults. His adult record commenced in 1999. Although he claims he had gone six years without an assault, the Crown points out the only gaps in his adult record occurred in 2001 when he was serving a penitentiary sentence and the years 2010-2012 when he had no convictions. His adult record includes nine assaults, one robbery and several convictions for uttering threats.

He has several convictions for failing to comply with a recognizance, failure to comply with a probation order, a breach of a conditional sentence order, a failure to attend court, failures to comply with undertakings, and two charges of obstruction of a peace officer. Four sentences were conditional. The respondent seems to have a record of being able to talk himself out of more serious sentences. [ 6 ] The sentencing judge found the respondent had made some personal improvements over the years and noted his consideration of the Gladue and Ipeelee factors.

He emphasized that a large number of the assaults occurred while the respondent was a young offender. He found the respondent had a strong employment record. He found the assault in question to be not minor but also not at “the high end of the scale”.

He ruled the Crown request for a penitentiary sentence to be excessive and ultimately determined a community-based sentence was a better option to reduce the risk to the community and improve the respondent’s chances of rehabilitation. [ 7 ] Court records disclose, and it was conceded before us, the respondent, shortly after the sentence was imposed, breached the conditions imposed. [ 8 ] We are all of the view the sentencing judge overemphasized the sentencing factor of rehabilitation.

He underemphasized the risk to the community and failed to give sufficient emphasis to the fact this was an assault in a domestic situation. He failed to consider adequately the lengthy past record of the respondent, particularly the number of assaults and the continuous failure of the respondent to comply with court orders and indeed, he has not. There is nothing in the respondent’s record to indicate he would comply with court imposed conditions.

A term of incarceration ought to have been imposed. [ 9 ] We therefore allow the appeal, vacate the conditional sentence imposed below, and impose a custodial sentence of incarceration for the same length of term, i.e. , 21 months. The respondent shall be credited with the same remand credit of six months, and the term of incarceration will be further reduced by the six months the respondent has already served leaving a remainder of nine months incarceration.